News and Insights

Separation and Divorce

When a marriage comes to an end, how do you begin the process of divorce and what does a divorce entail?

Divorce 

Divorce is the dissolution of a marriage. Obtaining a divorce involves filing an application with the Federal Circuit and Family Court of Australia (“the Court”) asking the Court to legally bring an end to a marriage.

Importantly an application for divorce does not resolve property division or the care arrangements for children.  These issues are dealt with separately and are not subject to the same time frame requirements as an application for divorce.

Requirements to apply for a divorce

To file an application for divorce the following requirements must be met:

• You were born in Australia or are a citizen by a grant of Australian citizenship
• You are living in Australia and have been for the last 12 months.
• You must be legally married.
• you must have been separated for a period of 12 months

If the above criteria can be met an application for divorce can be filed with the Court one day after the 12-month anniversary of the date of separation.

Married less than two years?

If you have been married for a period of less than two years, the Court will require that you file a counselling certificate.

To obtain a counselling certificate, you and your spouse must attend an appointment with a counsellor to discuss the possibility that your marriage can be reconciled.

The counsellor you engage can then be requested to complete the counselling certificate which will be filed with the court when filing your Application for Divorce.

If you do not obtain a counselling certificate, you must ask the Court for permission to apply for a divorce.

Living under the same roof during your period of separation?

Many couples continue to reside under the one roof for a period following the date of their separation.

If you have resided together under the same roof during the 12-month separation period, the Court will require that you file an affidavit which details your circumstances during that period.

Consideration should also be given to filing an affidavit from a third party who can provide independent evidence as to your separation.

Does my former spouse have to agree to divorce?

No.  An Application for Divorce can be made by either party to a marriage.  It is not necessary that you both want to proceed to obtain a divorce.  A divorce application can be filed by one party alone, by way of a sole Application to the Court.  If both parties to a marriage agree to apply for a divorce, a joint application can be filed.

Do I have to give a reason for seeking a divorce?

In Australia an application for divorce does not require fault to be established.  Australia is a no-fault jurisdiction.  The reason why the relationship broke down does not need to be established for the Court to grant a divorce.

How do I make an Application for Divorce?

An Application for Divorce can be filed on-line via the Federal Circuit and Family Court of Australia’s Commonwealth Court Portal. The portal can be accessed via the Courts website.

Applicants need to upload a copy of their marriage certificate at the time of filing the Application and pay the relevant Court Filing fee.

Once filed a court date for the hearing of the application will be allocated. If the application has been filed as a sole application, the application will need to be served on the other party.

Problems with service of an application can arise and an application for substituted service may be necessary in some circumstances.

The requirements as to service of applications are detailed in the information sheets attached to the application for divorce and are also available on the Courts website.

Hearing

Applicants may need to appear at the hearing of a sole application if there are children of the relationship under the age of 18 years or if the application cannot be served on the other party or if the other party files a response to the application.

Whilst applicants do not require a lawyer to file the documents with the court, independent legal advice should be considered prior to the application being filed.

Do I have to wait until I am divorced to negotiate property settlement?

No.  You can commence property settlement negotiations immediately.  You should obtain legal advice following the breakdown of your relationship to discuss the benefits in moving property settlement discussions forward in a timely manner.

Once divorced you have 12 months to commence proceedings in court seeking orders for property settlement.

Do I have to wait until I am divorced to negotiate care arrangements for our children?

No. Again this can be negotiated at any time.  If you are unable to agree about the care arrangements for your children, you may need to commence the process of Family Dispute Resolution and should obtain independent legal advice to assist you to move forward with confidence.

The Family Law team at Wisewould Mahony can offer competitive rates and fixed fees in some circumstances to assist clients finalise an Application for Divorce.